1 IN THE UNITED STATE DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

18 Pages·2016·2.44 MB·English

Case 1:16-cv-10705-RGS Document 1 Filed 04/13/16 Page 1 of 18
IN THE UNITED STATE DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

DOUGLAS CARP, )
ROBERT CARP )
Plaintiffs )
)
v. ) Civil Action No. 16-10705
)
ALIBABA GROUP HOLDING LTD. ) JURY TRIAL DEMANDED
__________________________________________)

COMPLAINT FOR PATENT INFRINGEMENT

Plaintiffs Robert Carp and Douglas Carp (“Plaintiffs”) by way of Complaint
against the above-named Defendant (“Defendant”) alleges the following:

NATURE OF THE ACTION

1. This is an action for patent infringement arising under the Patent Laws of the
United States, 35 U.S.C. § 1 et seq.

THE PARTIES

2. Plaintiffs Robert Carp and Douglas Carp are partners with a place of business
at 1215 Chestnut Street, Newton, MA 02464.
3. Defendant Alibaba Group Holding Limited, (hereinafter “Alibaba”) is a
Chinese company organized under the laws of the Cayman Islands with its principal
place of business located at 1 Matheson Street, Causeway Bay, Hong Kong. Alibaba has
appointed Corporation Service Company of New York City as their Agent for Service.

JURISDICTION AND VENUE

4. This is an action for patent infringement arising under the Patent Laws of the
United States, Title 35 of the United States Code.
5. This Court has subject matter jurisdiction under 28 U.S.C. § § 1331 and 1338.
6. Defendants are subject to the jurisdiction of this Court because of M.G.L. c.
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Case 1:16-cv-10705-RGS Document 1 Filed 04/13/16 Page 2 of 18
223A, §§ 6-7.
Venue is proper in this judicial district under 28 U.S.C. §§ 1391(c) and 1400(b).

FACTUAL BACKGROUND

7. On January 6, 2004, U.S. Patent No. D484841 (the “841 Patent”) entitled
“Boat Cleat” was duly issued by the United States Patent and Trademark Office to
inventor David J. Ziemer. The 841 Patent has been duly and legally assigned to Douglas
Carp and his partner Robert Carp. A copy of the 841 Patent is attached as Exhibit A.

8. On January 6, 2004, U.S. Patent D484842 (“the 842 Patent”) entitled “Boat
Cleat” was duly and legally issued by the United States Patent and Trademark Office to
inventor David J. Ziemer. The 842 Patent has been duly and legally assigned to Douglas
Carp and his partner Robert Carp. A copy of the 842 Patent is attached as Exhibit B.

9. On December 30, 2003, U.S. Patent D484448 (“the 448 Patent”) entitled “Boat
Cleat” was duly and legally issued by the United States Patent and Trademark Office to
inventor David J. Ziemer. The 448 Patent has been duly and legally assigned to Douglas
Carp and his partner Robert Carp. A copy of the 448 Patent is attached as Exhibit C.

10. On December 30, 2003, U.S. Patent D48449 (“the 449 Patent”) entitled Boat
Cleat was duly and legally issued by the United States Patent and Trademark Office to
inventor David J. Ziemer. The 449 Patent has been duly and legally assigned to Douglas
Carp and his partner Robert Carp. A copy of the 449 Patent is attached as Exhibit D.

11. On or about August 4, 2015 the Plaintiffs sent an email communication to
Defendant Alibaba that the company had allowed one of their suppliers to infringe the
‘841, 842’, ‘448, and the ‘449 patents through the operation of its web site
www.alibaba.com. Upon information and belief Alibaba’s legal department received this
email and sent a return email to Attorney Carp stating that “The product listing as you
identified has already been processed and will be removed once our system refreshes
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within 24 hours.”
12. Attorney Carp again found that Alibaba had not removed the infringing
items, and sent them another email on March 17, 2016, noting that the link they provided
to the infringing supplier had never been removed, and declined to use their portal to
report intellectual property and copyright fraud. The portal mandates that the aggrieved
patent holder must agree to their choice of venue, and that arbitration was mandatory.
Attorney Carp repeated his request to immediately remove the violating images and
material.
13. Alibaba’s legal department sent Attorney Carp an email on March 18th, 2016
stating that “The product listing has clearly been removed already last time when we sent
you the email.”
14. Attorney Carp has since been to the web site on a number of occasions, and
all of the supposedly removed links were still operational, and the supplier has claimed to
have sold $340,000 or more of the patented product in 38 separate transactions.
Exhibits E, F and G are screen shots of Alibaba’s supplier who has created the copies of
the patented material taken on April 7, 2016 from Alibaba’s web site.

FIRST CLAIM FOR RELIEF INFRINGEMENT OF U.S. PATENT NO. D489312
(35 U.S.C. § 271)

15. The allegations set forth in the foregoing paragraphs 1 through 14 are hereby
realleged and incorporated herein by reference.
16. Upon information and belief, Defendants have infringed one or more claims
of the ‘841 Patent in this judicial district and elsewhere by making, using, selling, and/or
offering for sale services and products that infringe and/or perform processes that infringe
one or more claims of the ‘841 Patent (“Accused Services and Products for the ‘841
Patent”).
17. Upon information and belief, Defendants Accused Services and Products for
the ‘841 Patent include but are not limited to the Defendant’s original boat cleats, but to
further reproductions in different sizes.

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18. Defendants had actual knowledge of the ’841 Patent and its alleged
infringement of the patent since at least the time it received Carp’s communication on or
about August 4, 2015.
19. Because of Defendant’s infringement of the ‘841 Patent, the Plaintiffs have
suffered damages.

SECOND CLAIM FOR RELIEF
INFRINGEMENT OF U.S. PATENT NO. D484842
(35 U.S.C. § 271)

20. The allegations set forth in the foregoing paragraphs 1 through 19 are
hereby realleged and incorporated herein by reference.
21. Upon information and belief, Defendant has infringed one or more claims of
the ‘842 Patent in this judicial district and elsewhere by making, using, selling and/or
offering for sale services and products that infringe and/or perform processes that infringe
one or more claims of the ‘842 patent (“Accused Services and Products for the ‘842
Patent”).
22. Upon information and belief, Defendant’s Accused Services and Products for
the ‘842 patent include but are not limited to the Defendant’s original boat cleats, but to
further reproduction in different sizes.
23. Defendants had actual knowledge of the ‘842 patent and its alleged
infringement of that patent since at least the time it received Carp’s communication on or
about August 4, 2015.
24. Because of Defendant’s infringement of the ‘842 Patent, the Plaintiffs have
suffered damages.
THIRD CLAIM FOR RELIEF
INFRINGEMENT OF U.S. PATENT NO. D484448
(35 U.S.C. § 271)

25. The allegations set forth in the foregoing paragraphs 1 through 24 are hereby
realleged and incorporated herein by reference.

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26. Upon information and belief, Defendant has infringed and continued to
infringe one or more claims of the ‘448 Patent in this judicial district and elsewhere by
making, using, selling and/or offering for sale services and products that infringe and/or
perform processes that infringe one or more claims of the ‘448 patent (“Acccused
Services and Products for the ‘448 Patent”).
27. Upon information and belief, Defendant’s Accused Services and Products for
the ‘448 patents include but are not limited to the Defendants’ original boat cleats, but to
further reproduction in different sizes.
28. Defendant had actual knowledge of the ‘448 patent and its alleged
infringement of that patent since at least the time it received Carp’s communication on or
about August 4, 2015.
29. Upon information and belief, since at least the time it received Carp’s email,
Defendants have committed and continues to commit acts of contributory infringement of
the ‘448 patent under 35 U.S.C. § 271 (c) by providing products, including the Accused
Services and Products to others, including but not limited to its customers and partners,
knowing or willfully blind to the fact that these products constitute a material part of the
invention, were especially made or adapted for use in an infringement of the ‘448 patent,
and no substantial non-infringing uses.
30. In particular, the Accused Services and Products include several different
patented boat cleats of marine animals. These boat cleats have no substantial non-
infringing uses at least because they contain mounts and material and are advertised by
the Defendants as the same product covered by the patents. Defendants have known or
remained willfully blind to these facts since at least the date it received the email from
Carp notifying Defendants that such activities infringed the ‘448 Patent.
31. Upon information and belief, since at least the time it was contacted by Carp
by email on or about August 4, 2015, Defendant has induced and continues to induce
others to infringe at least one claim of the ‘448 patent under 35 U.S.C. § 271 (b) by,
among other things, and with specific intent or willful blindness, actively aiding and
abetting others to infringe, including but not limited to Defendants’ partners and
customers, whose use of the Accused Services and Products constitutes direct
infringement of at least one claim of the ‘448 patent.
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32. In particular, Defendants’ actions that aid and abet others such as its partners
and customers to infringe include advertising and distributing the Accused Services and
Products and providing literature, and design services regarding the Accused Services
and Products. On information and belief, Defendants have engaged in such actions with
specific intent to cause infringement or with willful blindness to the resulting
infringement because Defendant has had actual knowledge of the ‘448 Patent since at
least the date it received the email from Carp notifying Defendants that such activities
infringed upon the ‘448 Patent.
33. Despite Plaintiffs’ notice regarding the ‘448 Patent, Defendants have
continued to infringe the ‘448 Patent. On information and belief, Defendants’
infringement has been and continues to be willful.
34. Plaintiffs have been harmed by Defendants’ infringing activities.

FOURTH CLAIM FOR RELIEF
INFRINGEMENT OF U.S. PATENT NO. D484449
(35 U.S.C. § 271)

35. The allegations set forth in the foregoing paragraphs 1 through 34 are hereby
realleged and incorporated herein by reference.
36. Upon information and belief, Defendants have infringed and continue to
infringe one or more claims of the ‘449 Patent in this judicial district and elsewhere by
offering for sale services and products that infringe and/or perform processes that infringe
one or more claims of the ‘449 Patent (“Accused Services and Products for the ‘449
Patent”).
37. Upon information and belief, Defendants’ Accused Services and Products for
the ‘449 Patent include but are not limited to Defendants’ original boat cleats, but to
further reproduction in different sizes.
38. Defendants had actual knowledge of the ‘449 Patent and its alleged
infringement of that patent since at least the time it received Plaintiffs’ phone emailed
notice of infringement on or about August 4, 2015.
39. Upon information and belief, since at least the time it received Plaintiffs’
August 4, 2015 email notice and, Defendants have induced and continue to induce others
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to infringe at least one claim of the ‘449 patent under U.S.C. § 271 (b) by, among other
things, and with specific intent or willful blindness, actively aiding and abetting others to
infringe, including but not limited to Defendants’ partners and customers, whose use of
the Accused Services and Products constitutes direct infringement of at least one claim of
the ‘449 patent.
40. In particular, Defendants’ actions that aid and abet others such as its partners
and customers to infringe include advertising and distributing the Accused Services and
Products and consulting services regarding the Accused Services and Products. On
information and belief, Defendants have engaged in such actions with specific intent to
cause infringement or with willful blindness to the resulting infringement because
Defendant has had actual knowledge of the ‘449 Patent since at least the date it received
the email from Carp notifying Defendants that such activities infringed upon the ‘449
Patent.
41. Despite Plaintiffs’ notice regarding the ‘449 Patent, the Defendants have
continued to infringe the ‘449 patent. On information and belief, Defendants’
infringement has been continues to be willful.
42. The Plaintiffs have been harmed by Defendants’ infringing activities.

JURY DEMAND

Plaintiffs demand a trial jury on all issues triable as such.

PRAYER FOR RELIEF

WHEREFORE, Robert and Douglas Carp respectfully requests that this Court
enter judgment for them and against Defendants as follows:
a. An adjudication that Defendants have infringed the ‘841, 842, 448, and 449
Patents;
b. An award of damages to be paid by Defendants adequate to compensate the
Plaintiffs for Defendants’ past infringement of the above Patents, and any
continuing or future infringement through the date such judgment is entered,
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including interest, costs, expenses and an accounting of all infringing acts
including, but not limited to, those acts not presented at trial;
c. An order that Defendants pay an ongoing royalty in an amount to be
determined for any continued infringement of the above Patents after the date
judgment is entered.
d. An award of treble damages under 35 U.S.C. § 284;
e. A declaration finding this to be an exceptional case, and awarding Robert and
Douglas Carp attorney fees under 35 U.S.C. § 285; and
f. For such further relief at law and in equity as the Court may deem just and
proper.

Dated: April 8, 2016

Respectfully Submitted,

/s/Robert H. Carp
Massachusetts Bar No. 676732
Carp Law Offices, LLC
1215 Chestnut Street
Newton, MA 02464
Email: [email protected]

Attorney for Plaintiffs (pro se)
Douglas and Robert Carp

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ASSIGNMENT OF PATENTS
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ASSIGNMENT OF PATENTS (CONTINUED)
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